Yet More Analysis on NSA Spying in the USA
Orin Kerr, at The Volokh Conspiracy, boils it down:
The legality of the NSA surveillance program raises two different questions: 1) Does the NSA's surveillance program violate a provision of the Constitution?, and 2) Does the NSA's surveillance program violate any constitutionalily valid statutes? The two are quite separate issues: Whether executive branch action violates a statute is different from whether it violates the Constitution.
In many people's opinion (and obviously opinion varies), the monitoring itself was not unconstitutional. However, stronger opinion exists that it violated FISA, and was therefore illegal. If this sounds familiar, it's because I said it before on December 20th.
Perhaps this firestorm of debate will spark a case about the nexus of military and civil jurisdictions, war powers, and war authorizations. That's where the problem (and the memorable #8220;wall” between the spy agencies and the FBI investigations into terrorism) originates. Harvard Law Review has looked into it, but I don't think the nation has. There are plenty of blogs that have, for example Power Line here and the Daily Kos here.
Are we at a state of war or not? I believed so, and accepted that the nexus had moved a little more toward military realities. After all, full-scale war with a terrorist organization expert in concealing activities and having no central local of control is quite different than defending against a nation. We are interdicting emerging organizations, interfering with, or infiltrating, what we can discover of their command and control, and doing what we can to control whatever assets of mass destruction they can obtain.
International terrorists are moving into and out of the country using local resources to communicate abroad. The NSA has extensive capabilities to intercept, monitor, and decrypt such communications. It makes sense that a war would spark the use of any and every capability to confound and defeat the enemy. We should accept that sometimes mistakes are made because of the need for timely action. We should also accept that such mistakes are far less frequent now than they have been in the past. After all, people raise the specter of internment of American citizens of Japanese descent in World War II, and believe we are inches away from doing the same with Muslims today. I doubt Guantanamo is equivalent in scale to our recent history here.
However, there are others that apparently think we are not at war at all. The arguments revolve around the weasel-worded congressional authorization for (and, perhaps, temerity about) the Global War on Terror. Some clarity is necessary here, and in politics clarity is often a stated—but routinely subverted—goal.
I have great hopes that this situation will stimulate an appropriate national debate, and not a flame-fest. However, George W. Bush takes too long to respond to firestorms. He took forever to respond to criticisms about Iraq, and I feat he will take too long on this issue as well. We certainly can't trust the mainstream media to frame the debate without bias, of course, so it's up to people on both sides of the debate to make noise.
Update: There's a link-farm on this subject collected here at Kierkegaard Lives.
Josh Poulson
Posted Tuesday, Dec 27 2005 11:28 AM
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